Two frightful world wars and the violent
collisions by which peace among the States was violated during the
period between these enormous and world embracing conflicts caused
the tortured peoples to realize that a true order among the States is
not possible as long as such State, by virtue of its sovereignty, has
the right to wage war at any time and for any purpose. During the
last decades public opinion in the world challenged with ever
increasing emphasis the thesis that the decision of waging war is
beyond good and evil. A distinction is being made between just and
unjust wars and it is asked that the Community of States call to
account the State which wages an unjust war and deny it, should it be
victorious, the fruits of its outrage. More than that, it is demanded
that not only should the guilty State be condemned and its liability
be established, but that furthermore those men who are responsible
for unleashing the unjust war be tried and sentenced by an
International Tribunal. In that respect one goes now-a-days further
than even the strictest jurists since the early middle ages. This
thought is at the basis of the first three counts of the Indictment
which have been put forward in this Trial, to wit, the Indictment for
Crimes against Peace. Humanity insists that this idea should in the
future be more than a demand, that it should be valid international
law.

However, today it is not as yet valid international law. Neither
in the statute of the League of Nations, world organization against
war, nor in the Kellogg-Briand Pact, nor in any other of the treaties
which were concluded after 1918 in that first upsurge of attempts to
ban aggressive warfare, has this idea been realized. But above all
the practice of the League of Nations has, up to the very recent
past, been quite unambiguous in that regard. On several occasions the
League had to decide upon the lawfulness or unlawfulness of action by
force of one member against another member, but it always condemned
such action by force merely as a violation of international law by
the State, and never thought of bringing up for trial the statesmen,
generals, and industrialists of the state which recurred to force.
And when the new organization for world peace was set up last summer
in San Francisco, no new legal maxim was created under which an
international tribunal would inflict punishment upon those who
unleased an unjust war. The present Trial can, therefore, as far as
Crimes against Peace shall be avenged, not

* The Tribunal rejected this motion 21 November
1945, ruling that insofar as it was a plea to the jurisdiction of the
Tribunal it was in conflict with Article 3 of the Charter.